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EXPERIMENTS  IN  GOVERNMENT 

AND    THE    ESSENTIALS  OF 

THE    CONSTITUTION 

THE  STAFFORD  LITTLE  LECTURES 
FOR  1913 


EXPERIMENTS  IN  GOVERNMENT 

AND  THE  ESSENTIALS  OF 

THE  CONSTITUTION 


BY 

ELIHU  ROOT 


PRINCETON   UNIVERSITY  PRESS 
PRINCETON 

LONDON:   HENRY  FROWDE 

OXFORD    UNIVERSITY  PRESS 

1913 


Copyright,  1913,  by 
Princeton  University  Press 

Published  June,  1913 


JK 


PREFACE 

The  familiar  saying  that  nothing  is  settled 
until  it  is  settled  right  expresses  only  a  half 
truth.  Questions  of  general  and  permanent 
importance  are  seldom  finally  settled.  A  very 
wise  man  has  said  that  "short  of  the  multipli- 
cation table  there  is  no  truth  and  no  fact  which 
must  not  be  proved  over  again  as  if  it  had 
never  been  proved,  from  time  to  time."  Con- 
ceptions of  social  rights  and  obligations  and 
the  institutions  based  upon  them  continue  un- 
questioned for  long  periods  as  postulates  in  all 
discussions  upon  questions  of  government. 
Whatever  conduct  conforms  to  them  is  as- 
sumed to  be  right.  Whatever  is  at  variance 
with  them  is  assumed  to  be  wrong.  Then  a 
time  comes  when,  with  apparent  suddenness, 
the  ground  of  discussion  shifts  aiid  the  postu- 
lates are  denied.     They  cease  to  be  accepted 


a48.'}j>i 


iv  PREFACE 

without  proof  and  the  whole  controversy  in 
which  they  were  originahy  established  is  fought 
over  again. 

The  people  of  the  United  States  appear  now 
to  have  entered  upon  such  a  period  of  re- 
examination of  their  system  of  government. 
Not  only  are  political  parties  denouncing  old 
abuses  and  demanding  new  laws,  but  essential 
principles  embodied  in  the  Federal  Constitution 
of  1787,  and  long  followed  in  the  constitutions 
of  all  the  states,  are  questioned  and  denied. 
The  wisdom  of  the  founders  of  the  Republic 
is  disputed  and  the  political  ideas  which  they 
repudiated  are  urged  for  approval. 

I  wish  in  these  lectures  to  present  some  ob- 
servations which  may  have  a  useful  application 
jn  the  course  of  this  process. 


I 

EXPERIMENTS 


I 

EXPERIMENTS 

There  are  two  separate  processes  going  on 
among  the  civihzed  nations  at  the  present  time. 
One  is  an  assault  by  socialism  against  the  indi- 
vidualism which  underlies  the  social  system  of 
western  civilization.  The  other  is  an  assault 
against  existing  institutions  upon  the  ground 
that  they  do  not  adequately  protect  and  develop 
the  existing  social  order.  It  is  of  this  latter  :  /.  r 
process  in  our  own  country  that  I  wish  to 
speak,  and  I  jissumc  an  agreement,  that  the  .. 
right  of  individual  liberty  and  the  inseparable 
right  of  private  property  which  lie  at  the 
foundation  of  our  modern  civilization  ought 
to  be  maintained. 

The  conditions  of  life  in  America  have 
changed  very  much  since  tlie  Constitution  of 
the  United  States  was  adopted.  In  1787  each 
state  entering  into  the  Federal  Union  had  pre- 


4  EXPERIMENTS  AND  ESSENTIALS 

served  the  separate  organic  life  of  the  original 
colony.  Each  had  its  center  of  social  and  busi- 
ness and  political  life.  Each  was  separated 
from  the  others  by  the  barriers  of  slow  and 
difficult  communication.  In  a  vast  territory, 
without  railroads  or  steamships  or  telegraph  or 
telephone,  each  community  lived  within  itself. 

Now,  there  has  been  a  general  social  and  in- 
dustrial rearrangement.  Production  and  com- 
merce pay  no  attention  to  state  lines.  The  life 
of  the  country  is  no  longer  grouped  about  state 
capitals,  but  about  the  great  centers  of  conti- 
mental  production  and  trade.  The  organic 
growth  which  must  ultimately  determine  the 
form  of  institutions  has  been  away  from  the 
mere  union  of  states  towards  the  union  of  in- 
dividuals in  the  relation  of  national  citizenship. 

The  same  causes  have  greatly  reduced  the 
independence  of  personal  and  family  life.  In 
the  eighteenth  century  life  was  simple.  The 
producer  and  consumer  were  near  together  and 
could  find  each  other.  Every  one  who  had  an 
equivalent  to  give  in  property  or  service  could 


EXPERIMENTS  5 

readily  secure  tlie  support  of  himself  and  his 
family  without  asking  anything-  from  govern- 
ment except  the  preservation  of  order.  To-day 
almost  all  Americans  are  dependent  upon  the 
action  of  a  great  number  of  other  persons 
mostly  unknown.  About  half  of  our  people 
are  crowded  into  the  cities  and  large  towns. 
Their  food,  clothes,  fuel,  light,  water — all  come 
from  distant  sources,  of  which  they  are  in  the 
main  ignorant,  through  a  vast,  complicated  ma- 
chinery of  production  and  distribution  with 
which  they  have  little  direct  relation.  If  any- 
thing occurs  to  interfere  with  the  working  of 
the  machinery,  the  consumer  is  individually 
helpless.  To  be  certain  that  he  and  his  family 
may  continue  to  live  he  must  seek  the  power 
of  combination  with  others,  and  in  the  end  he 
inevitably  calls  u])()n  that  great  combination  of 
all  citizens  which  we  call  government  to  do 
something  more  than  merely  keep  the  peace — 
to  regulate  tlie  machinery  of  jiroduction  and 
distrilmtion  and  safeguard  it  from  interference 
so  that  it  shall  CDntinuc  ti»  work. 


6  EXPERIMENTS  AND  ESSENTIALS 

A  similar  change  has  taken  place  in  the  con- 
ditions under  which  a  great  part  of  our  people 
engage  in  the  industries  by  which  they  get  their 
living.     Under  comparatively  simple  industrial 
conditions  the  relation  between  employer  and 
employee  was  mainly  a  relation  of  individual 
to  individual,  with  individual  freedom  of  con- 
tract and  freedom  of  opportunity  essential  to 
equality  in  the  commerce  of  life.     Now,  in  the 
great  manufacturing,  mining  and  transporta- 
tion industries  of  the  country,  instead  of  the 
free  give  and  take  of  individual  contract  there 
is  substituted  a  vast  system  of  collective  bar- 
gaining between  great  masses  of  men  organized 
and   acting  through   their   representatives,   or 
the  individual  on  the  one  side  accepts  what  he 
can  get  from  superior  power  on  the  other.     In 
the  movement  of  these  mighty   forces  of  or- 
ganization the  individual  laborer,  the  individ- 
ual  stockholder,    the    individual    consumer,    is 
helpless. 

There  has  been  another  change  of  conditions 
through  the  development  of  political  organiza- 


EXPERIMENTS  7 

tion.  The  theory  of  poHtical  activity  which 
had  its  origin  approximately  in  the  adminis- 
tration of  President  Jackson,  and  which  is 
characterized  by  Marcy's  declaration  that  "to 
the  victors  belong  the  spoils,"  tended  to  make 
the  possession  of  office  the  primary  and  all- 
absorbing  purpose  of  political  conflict.  A 
complicated  system  of  party  organization  and 
representation  grew  up  under  which  a  disci- 
plined body  of  party  workers  in  each  state  sup- 
ported each  other,  controlled  the  machinery  of 
nomination,  and  thus  controlled  nominations. 
The  members  of  state  legislatures  and  other 
officers,  when  elected,  felt  a  more  acute  respon- 
sibility to  the  organization  which  could  control 
their  renomination  than  to  the  electors,  and 
therefore  became  accustomed  to  shape  their 
conduct  according  to  the  wishes  of  the  nomi- 
nating organization.  Accordingly  the  real 
power  of  government  came  to  be  vested  to  a 
high  degree  in  these  unofficial  political  organi- 
zations, and  where  there  was  a  strong  man  at 
the  head  of  an  oro-ani/.ation  his  control  came  to 


8  EXPERIMENTS  AND  ESSENTIALS 

be  something  very  closely  approaching  dictator- 
ship. Another  feature  of  this  system  aggra- 
vated its  evils.  As  population  grew,  political 
campaigns  became  more  expensive.  At  the 
same  time,  as  wealth  grew,  corporations  for 
production  and  transportation  increased  in 
capital  and  extent  of  operations  and  became 
more  dependent  upon  the  protection  or  toler- 
ation of  government.  They  found  a  ready 
means  to  secure  this  by  contributing  heavily 
to  the  campaign  funds  of  political  organiza- 
tions, and  therefore  their  influence  played  a 
large  part  in  determining  who  should  be  nomi- 
nated and  elected  to  office.  So  that  in  many 
states  political  organizations  controlled  the 
operations  of  government,  in  accordance  with 
the  wishes  of  the  managers  of  the  great 
corporations.  Under  these  circumstances  our 
governmental  institutions  were  not  working  as 
they  were  intended  to  work,  and  a  desire  to 
break  up  and  get  away  from  this  extra  consti- 
tutional method  of  controlling  our  constitu- 
tional government  has  caused  a  great  part  of 


EXPERIMENTS  9 

the  new  political  methods  of  the  last  few  years. 
It  is  manifest  that  the  laws  which  were  en- 
tirely adecjuate  under  the  conditions  of  a  cen- 
tury ago  to  secure  individual  and  puhlic  welfare 
must  be  in  many  respects  inadequate  to  ac- 
complish the  same  results  under  all  these  new 
conditions;  and  our  people  are  now  engaged  in 
the  difficult  but  imperative  duty  of  adapting 
their  laws  to  the  life  of  to-day.  The  changes 
in  conditions  ha\e  come  very  rapidly  and  a 
good  deal  of  experiment  will  be  necessary  to 
find  out  just  what  government  can  do  and  ought 
to  do  to  meet  them. 

The  process  of  devising  and  trying  new 
laws  to  meet  new  conditions  naturally  leads  to 
the  question  whether  we  need  not  merely  to 
make  new  laws  but  also  to  modify  the  prin- 
ciples upon  which  our  government  is  based 
and  the  institutions  of  government  designed  for 
the  application  of  those  principles  to  the  aiYairs 
of  life.  Upon  this  question  it  is  of  the  utmost 
importance  that  we  proceed  with  considerate 
wisdom. 


10        EXPERIMENTS  AND  ESSENTIALS 

By  institutions  of  government  I  mean  the 
established  rule  or  order  of  action  through 
which  the  sovereign  (in  our  case  the  sovereign 
people)  attains  the  ends  of  government.  The 
governmental  institutions  of  Great  Britain  have 
been  established  by  the  growth  through 
many  centuries  of  a  great  body  of  accepted 
rules  and  customs  which,  taken  together,  are 
called  the  British  Constitution.  In  this  coun- 
try we  have  set  forth  in  the  Declaration  of  In- 
dependence the  principles  which  we  consider  to 
lie  at  the  basis  of  civil  society  "that  all  men  are 
created  equal ;  that  they  are  endowed,  by  their 
Creator,  with  certain  unalienable  rights;  that 
among  these  are  life,  liberty,  and  the  pursuit  of 
happiness.  That  to  secure  these  rights,  gov- 
ernments are  instituted  among  men,  deriving 
their  just  powers  from  the  consent  of  the 
governed." 

In  our  Federal  and  State  Constitutions  we 
have  established  the  institutions  through  which 
these  rights  are  to  be  secured.  We  have  de- 
clared what  officers  shall  make  the  laws,  what 


EXPERHIENTS  II 

officers  shall  execute  them,  what  officers  shall 
sit  in  judgment  upon  claims  of  right  under 
them.  We  have  prescribed  how  these  officers 
shall  be  selected  and  the  tenure  by  which  they 
shall  hold  their  offices.  We  have  limited  them 
in  the  powers  which  they  are  to  exercise,  and, 
where  it  has  been  deemed  necessary,  we  have 
imposed  specific  duties  upon  them.  The  body 
of  rules  thus  prescribed  constitute  the  govern- 
mental institutions  of  the  United  States. 
\/  When  proposals  are  made  to  change  these 
institutions  there  are  certain  general  consider- 
ations which  should  be  observed. 

The  first  consideration  is  that  free  govern- 
1/  .  . 

ment  is  impossible  except  through  prescribed 

and  established  governmental  institutions. 
which  work  out  the  ends  of  government 
through  many  separate  human  agents,  each  do- 
ing his  i)art  in  obedience  to  law.  Popular  will 
cannot  execute  itself  directly  except  through  a 
mob.  Popular  will  cannot  get  itself  executed 
through  an  irresponsil)le  executive,  for  that  is 
simple  autocracy.     An  executive  limited  only 


12         EXPERIMENTS  AND  ESSENTIALS 

by  the  direct  expression  of  popular  will  cannot 
be  held  to  responsibilit}^  against  his  will,  be- 
cause, having  possession  of  all  the  powers  of 
government,  he  can  prevent  any  true,  free,  and 
general  expression  adverse  to  himself,  and  un- 
less he  yields  voluntarily  he  can  be  overturned 
only  by  a  revolution.  The  familiar  Spanish- 
American  dictatorships  are  illustrations  of  this. 
A  dictator  once  established  by  what  is  or  is 
alleged  to  be  public  choice  never  permits  an  ex- 
pression of  public  will  which  will  displace  him, 
and  he  goes  out  only  through  a  new  revolution 
l)ecause  he  alone  controls  the  machinery 
throug"h  which  he  could  be  displaced  peaceably. 
A  system  with  a  plebiscite  at  one  end  and 
Louis  Napoleon  at  the  other  could  not  give 
France  free  government ;  and  it  was  only  after 
the  humiliation  of  defeat  in  a  great  war  and 
the  horrors  of  the  Commune  that  the  French 
l)eople  were  able  to  establish  a  government  that 
would  really  execute  their  will  through  care- 
fully devised  institutions  in  which  they  gave 
their  chief  executive  very  little  power  indeed. 


EXPERIMENTS  1 3 

We  slioukl,  therefore,  reject  every  proposal 
which  involves  the  idea  that  the  people  can  rule 
merely  by  voting,  or  merely  by  voting  and  hav- 
ing one  man  or  group  of  men  to  execute  their 
will. 

A  second  consideration  is  that  in  estimating 
l/the  value  of  any  system  of  governmental  in- 
stitutions due  regard  must  be  had  to  the  true 
functions  of  government  and  to  the  limitations 
imposed  by  nature  upon  what  it  is  possible  for 
g-overnment  to  accomplish.  We  all  know  of 
course  that  we  cannot  abolish  all  the  evils  in 
this  world  by  statute  or  by  the  enforcement  of 
statutes,  nor  can  we  prevent  the  inexorable  law 
of  nature  which  decrees  that  suffering  shall 
follow  vice,  and  all  the  evil  passions  and  folly 
of  mankind.    Law  cannot  give  to  depravity  the  v    '    N  uP^ 

rewards  of  virtue,  to  indolence  the  rewards  of    ''^■^*'*"'^|     vpjjjlM*^ 
industry,  to   indifference  the  rewards  of  'im--rt^i-©kAr**  *^^ 
bition,  or  to  ignorance  the  rewards  of  learning.  jti-M*'^*-*-*^*^  * 
The  utmost  that  government  can  do  is  measur- 
ably to  protect  men,  not  against  the  wrong  they 
do  themselves  but  against  wrong  done  by  oth- 


14 


EXPERIMENTS  AND  ESSENTIALS 


ers  and  to  promote  the  long,  slow  process  of 
educating  mind  and  character  to  a  better 
knowledge  and  nobler  standards  of  life  and 
conduct.  We  know  all  this,  but  when  we  see 
how  much  misery  there  is  in  the  world  and 
instinctively  cry  out  against  it,  and  when  we 
see  some  things  that  government  may  do  to 
mitigate  it,  we  are  apt  to  forget  how  little  after 
all  it  is  possible  for  any  government  to  do,  and 
to  hold  the  particular  government  of  the  time 
and  place  to  a  standard  of  responsibility  which 
no  government  can  possibly  meet.  The  chief 
motive  power  which  has  moved  mankind  along 
the  course  of  development  that  we  call  the 
progress  of  civilization  has  been  the  sum  total 
of  intelligent  selfishness  in  a  vast  number  of 
individuals,  each  working  for  his  own  support, 
his  own  gain,  his  own  betterment.  It  is  that 
which  has  cleared  the  forests  and  cultivated 
the  fields  and  built  the  ships  and  railroads, 
made  the  discoveries  and  inventions,  covered 
the  earth  with  commerce,  softened  by  inter- 
course the  enmities  of  nations  and  races,  and 


EXPERIMEXTS  15 

made  possible  the  wonders  of  literature  and  of 
art.  Gradually,  during  the  long  process,  sel- 
fishness has  grown  more  intelligent,  with  a 
broader  view  of  individual  benefit  from  the 
common  good,  and  gradually  the  influences  of 
nobler  standards  of  altruism,  of  justice,  and 
human  sympathy  have  impressed  themselves 
upon  the  conception  of  right  conduct  among 
civilized  men.  But  the  complete  control  of 
such  motives  will  be  the  millennium.  Any  at- 
tempt to  enforce  a  millennial  standard  now  by 
law  must  necessarily  fail,  and  anv  judgment 
which  assumes  government's  responsibility  to 
enforce  such  a  standard  must  be  an  unjust 
judgment.  Indeed,  no  such  standard  can  ever 
be  forced.  It  must  come,  not  bv  superior 
force,  but  from  the  changed  nature  of  man, 
from  his  willingness  to  be  altogether  just  and 
merciful. 

A  third  consideration  is  that  it  is  not  merely 
y'useless   but   injurious    for   government   to   at- 
tempt too  much.     It  is  manifest  that  to  enable 
it    to    deal    with    (lie    new    conditions    I    have 


i6         EXPERIMENTS  AND  ESSENTIALS 

described    we    must    invest    government    with 
authority    to    interfere    with    the    individual 
conduct   of   the   citizen   to   a   degree   hitherto 
unknown  in  this  country.     When  government 
undertakes  to  give  the  individual  citizen  pro- 
tection  by    regulating   the   conduct   of   others' 
towards  him   in  the   field  where   formerly  he 
protected  himself  by  his  freedom  of  contract, 
it  is  limiting  the  liberty  of  the  citizen  whose 
conduct  is  regulated  and  taking  a  step  in  the* 
direction  of  paternal  government.     While  the 
new    conditions    of    industrial    life    make    it 
plainly  necessary  that  many  such  steps  shall  be 
taken,  they  should  be  taken  only  so  far  as  they 
are  necessary  and  are  effective.     Interference 
with  individual  liberty  by  government  should 
be  jealously  watched  and  restrained,  because 
the  habit  of  undue  interference  destroys  that 
independence  of  character  without  which  in  its 
citizens  no  free  government  can  endure. 

We  should  not  forget  that  while  institutions 
receive  their  foiTn  from  national  character 
they  have  a  powerful  reflex  influence  upon  that 


EXPERIMENTS  17 

character.  Just  so  far  as  a  nation  allows  its 
institutions  to  be  moulded  by  its  weaknesses 
of  character  rather  than  by  its  strength  it 
creates  an  influence  to  increase  weakness  at 
the  expense  of  strength. 

The  habit  of  undue  interference  by  govern- 
ment in  private  affairs  breeds  the  haljit  of  un- 
due reliance  upon  government  in  private  affairs 
at  the  expense  of  individual  initiative, -energy, 
enterprise,   courage,   independent  manhood. 

The  strength  of  self-government  and  the 
m()ti\-e  power  of  progress  must  be  found  in 
the  characters  of  the  individual  citizens  who 
make  up  a  nation.  Weaken  individual  char- 
acter among  a  people  by  comfortable  reliance 
upon  paternal  government  and  a  nation  soon 
becomes  incapable  of  free  self-government  and 
fit  only  to  be  governed:  the  higher  and  nobler 
qualities  of  national  life  that  make  for  ideals 
and  effort  and  achievement  become  atroi)hied 
and  the  nation  is  decadent. 

A  fourth  C(jnsidcration  is  that  in  the  nature 
of  things  all  government  must  be  imperfect  be- 


l8.        EXPERIMENTS  AND  ESSENTIALS 

cause  men  are  imperfect.  Every  system  has 
its  shortcomings  and  inconveniences ;  and  these 
are  seen  and  felt  as  they  exist  in  the  system 
under  which  we  hve,  while  the  shortcomings 
and  inconveniences  of  other  systems  are  for- 
gotten or  ignored. 

It  is  not  unusual  to  see  governmental  meth- 
ods reformed  and  after  a  time,  long  enough 
to  forget  the  evils  that  caused  the  change,  to 
have  a  new  movement  for  a  reform  which  con- 
sists in  changing  back  to  substantially  the  same 
old  methods  that  were  cast  out  by  the  first 
reform. 

The  recognition  of  shortcomings  or  incon- 
veniences in  government  is  not  by  itself  suf- 
ficient to  warrant  a  change  of  system.  There 
should  be  also  an  effort  to  estimate  and  com- 
pare the  short-comings  and  inconveniences  of 
the  system  to  be  substituted,  for  although 
they  may  be  different  they  will  certainly  exist. 

A  fifth  consideration  is  that  whatever 
changes  in  government  are  to  be  made,  we 
should    follow   the   method   which    undertakes 


EXPERIMENTS  19 

as  one  of  its  cardinal  points  to  hold  fast  that 
which  is  good.  Francis  Lieber,  whose  affec- 
tion for  the  conntry  of  his  birth  eqnalled  his 
loyalty  to  the  conntry  of  his  adoption,  once 
said: 

"There  is  this  difference  between  the 
English,  French,  and  Germans :  that  the 
English  only  change  what  is  necessary 
and  as  far  as  it  is  necessary;  the  French 
plunge  into  all  sorts  of  novelties  by  whole 
masses,  get  into  a  chaos,  see  that  they 
are  fools  and  retrace  their  steps  as 
quickly,  with  a  hig"h  degree  of  practical 
sense  in  all  tliis  unpracticability ;  the  Ger- 
mans attempt  no  change  without  first  re- 
curring to  first  principles  and  metaphysics 
beyond  them,  systematizing  the  smallest 
details  in  their  minds;  and  when  at  last 
they  mean  to  apply  all  their  meditation, 
opportunity,  with  its  wide  and  swift  wings 
of  a  gull,  is  gone." 

This  was  written  more  than  sixty  years  ago 


/f/^ 


20         EXPERIMENTS  AND  ESSENTIALS 

before  the  present  French  RepiibHc  and  the 
present  German  Empire,  and  Lieber  would 
doubtless  have  modified  his  conclusions  in  view 
of  those  great  achievements  in  government  if 
he  were  writing  to-day.  But  he  does  cor- 
rectly indicate  the  differences  of  method  and 
the  dangers  avoided  by  the  practical  course 
which  he  ascribes  to  the  English,  and  in  ac- 
cordance with  which  the  great  structure  of 
British  and  American  liberty  has  been  built 
up  generation  after  generation  and  century  af- 
ter century.  Through  all  the  seven  hundred 
years  since  Magna  Charta  we  have  been  shap- 
ing, adjusting,  adapting  our  system  to  the  new 
conditions  of  life  as  they  have  arisen,  but  we 
have  always  held  on  to  everything  essentially 
good  that  we  have  ever  had  in  the  system. 
We  have  never  undertaken  to  begin  over  again 
and  build  up  a  new  system  under  the  idea  that 
we  could  do  it  better.  We  have  never  let  go 
of  Magna  Charta  or  the  Bill  of  Rights  or  the 
Declaration  of  Independence  or  the  Constitu- 
tion.    When  we  take  account  of  all  that  gov- 


EXPERIMENTS  21 

ernments  have  sought  to  do  and  have  failed  to 
do  in  this  selfish  and  sinful  world,  we  find 
that  as  a  rule  the  application  of  new  theories 
of  government,  though  devised  by  the  most 
brilliant  constructive  genius,  have  availed  but 
little  to  preserve  the  people  of  any  consider- 
able regions  of  the  earth  for  any  long  periods 
from  the  evils  of  despotism  on  the  one  hand 
or  of  anarchy  on  the  other,  or  to  raise  any 
considerable  ])ortion  of  the  mass  of  mankind 
above  the  hard  conditions  of  oppression  and 
misery.  And  we  find  that  our  system  of  gov- 
ernment which  has  been  l)nilt  up  in  this  prac- 
tical way  through  so  many  centuries,  and  the 
whole  histor)^  of  which  is  potent  in  the  pro- 
visions of  our  Constitution,  has  done  more 
to  preserve  liberty,  justice,  security,  and  free- 
dom of  opportunity  for  many  people  for  a  long 
period  and  over  a  great  portion  of  the  earth, 
than  any  other  system  of  government  ever  de- 
vised by  man.  Human  nature  does  not  change 
very  much.  The  forces  of  evil  are  hard  to 
control  now  as  tliev  always  have  been.     It  is 


22         EXPERIMENTS  AND  ESSENTIALS 

easy  to  fail  and  hard  to  succeed  in  reconciling 
liberty  and  order.  In  dealing  with  this  most 
successful  body  of  governmental  institutions 
the  question  should  not  be  what  sort  of  gov- 
ernment do  you  or  I  think  we  should  have. 
What  you  and  I  think  on  such  a  subject  is  of 
very  little  value  indeed.  The  question  should 
be: 

How  can  we  adapt  our  laws  and  the  work- 
ings of  our  government  to  the  new  conditions 
which  confront  us  without  sacrificing  any  es- 
sential element  of  this  system  of  government 
which  has  so  nobly  stood  the  test  of  time  and 
without  abandoning  the  political  principles 
which  have  inspired  the  growth  of  its  institu- 
tions? For  there  are  political  principles,  and 
nothing  can  be  more  fatal  to  self-government 
than  to  lose  sight  of  them  under  the  influence 
of  apparent  expediency. 

In  attempting  to  answer  this  question  we 
need  not  trouble  ourselves  very  much  about 
the  multitude  of  excited  controversies  which 
have  arisen  over  new  methods  of  extra  con- 


EXPERIMENTS  23 

stitutional-political  organization  and  proce- 
dure. Direct  nominations,  party  enrollments, 
instructions  to  delegates,  presidential  prefer- 
ence primaries,  independent  nominations,  all 
relate  to  forms  of  voluntary  action  outside  the 
proper  field  of  governmental  institutions.  All 
these  new  political  methods  are  the  result  of 
efforts  of  the  rank  and  file  of  voluntary  parties 
to  avoid  being  controlled  by  the  agents  of  their 
own  party  organization,  and  to  get  away  from 
real  evils  in  the  form  of  undue  control  by  or- 
ganized minorities  with  the  support  of  organ- 
ized capital.  None  of  these  expedients  is  an 
end  in  itself.  They  are  tentative,  experi- 
mental. They  are  m()\'ements  not  towards 
something  definite  but  away  from  something- 
definite.  They  may  be  inconvenient  or  dis- 
tasteful to  some  of  us,  but  no  one  need  be  ser- 
iously disturbed  by  the  idea  that  they  threaten 
our  system  of  government.  Tf  they  work  well 
they  will  be  an  advantage.  I  f  they  work  badly 
they  will  be  abandoned  and  some  other  ex- 
pedient will  be  tried,  and  the  ultimate  outcome 


24         EXPERIMENTS  AND  ESSENTIALS 

will   doubtless   be   an   improvement   upon   the 
old  methods. 

There  is  another  class  of  new  methods  which 
do  relate  to  the  structure  of  government  and 
which  call  for  more  serious  consideration  here. 
Chief  in  this  class  are : 

The  Initiative ;  that  is  to  say,  direct  legisla- 
tion by  vote  of  the  people  upon  laws  proposed 
by  a  specified  number  or  proportion  of  the 
electors. 

The  Compulsory  Referendum ;  that  is  to  say, 
a  requirement  that  under  certain  conditions 
laws  that  have  been  agreed  upon  by  a  legis- 
lative body  shall  be  referred  to  a  popular  vote 
and  become  operative  only  upon  receiving  a 
majority  vote. 

The  Recall  of  Officers  before  the  expiration 
of  the  terms  for  which  they  have  been  elected 
by  a  vote  of  the  electors  to  be  had  upon  the 
demand  of  a  specified  number  or  proportion  of 
them. 

The  Popular  Review  of  Judicial  Decisions 
upon  constitutional  questions;  that  is  to  say, 


EXPERIMENTS  25 

a  provision,  under  which,  when  a  court  of  last  ^^^E^^AlrtOL 
resort  has  decided  that  a  particular  law  is  in- 'L.,^£»axkJ*|:*j'£ 
valid,  because  in  conflict  with  a  constitutional iJ'*^ ''^^^''*'''^'^ ' 
provision,  the  law  may  nevertheless  be  made 
valid  by  a  popular  vote. 

Some  of  these  methods  have  been  made  a 
part  of  the  constitutional  system  of  a  con- 
siderable number  of  our  states.  They  have 
been  accompanied  invariably  by  provisions  for 
v^ery  short  and  easy  changes  of  state  constitu- 
tions, and,  so  long  as  they  are  confined  to  the 
particular  states  which  have  chosen  to  adopt 
them,  they  may  be  regarded  as  experiments 
which  we  may  watcli  with  interest,  whatcxx-r 
may  be  our  opinions  as  to  the  outcome,  and 
with  the  expectation  that  if  they  do  not  work 
well  they  also  will  be  abandoned.  This  is 
especially  true  because,  since  the  adoption  of 
the  Fourteenth  Amendment  to  the  Constitu- 
tion, the  states  are  prohibited  from  violating  in 
their  own  affairs  the  most  important  principles 
of  the  National  Constitution.  It  is  not  to  be 
expected,  however,  that  new  methods  and  rules 


26         EXPERIMENTS  AND  ESSENTIALS 

of  action  in  government  shall  become  universal 
in  the  states  and  not  ultimately  bring  about  a 
change  in  the  national  system.  It  will  be  use- 
ful, therefore,  to  consider  whether  these  new 
methods  if  carried  into  the  national  system 
would  sacrifice  any  of  the  essentials  of  that 
system  which  ought  to  be  preserved. 

The  Constitution  of  the  United  States  deals 
in  the  main  with  essentials.  There  are  some 
non-essential  directions  such  as  those  relating 
to  the  methods  of  election  and  of  legislation, 
but  in  the  main  it  sets  forth  the  foundations 
of  government  in  clear,  simple,  concise  terms. 
It  is  for  this  reason  that  it  has  stood  the  test 
of  more  than  a  century  with  but  slight  amend- 
ment, while  the  modern  state  constitutions, 
into  which  a  multitude  of  ordinary  statutory 
provisions  are  crowded,  have  to  be  changed 
from  year  to  year.  The  pecunar  and  essential 
qualities  of  the  government  established  by  the 
Constitution  are :    ' 

First,  it  is  representative. 

Second,  it  recognizes  the  liberty  of  the  in- 


EXPERIMENTS  27 

dividual  citizen  as  distinguished  from  the  total 
mass  of  citizens,  and  it  protects  that  liberty 
by  specific  limitations  upon  the  power  of 
government. 

Third,  it  distributes  the  legislative,  ex- 
ecutive and  judicial  powers,  which  make  up  the 
sum  total  of  all  government,  into  three  sep- 
arate departments,  and  specifically  limits  the 
powers  of  the  officers  in  each  department. 

Fourth,  it  superimposes  upon  a  federation 
of  state  governments,  a  national  government 
with  sovereignty  acting  directly  not  merely 
upon  the  states,  but  upon  the  citizens  of  each 
state,  within  a  line  of  limitation  drawn  be- 
tween the  powers  of  the  national  government 
and  the  powers  of  the  state  governments. 

Fifth,  it  makes  observance  of  its  limitations 
requisite  to  the  validity  of  laws,  whether 
passed  by  the  nation  or  by  the  states,  to  be 
judged  by  the  courts  of  law  in  each  concrete 
case  as  it  arises. 

Every  one  of  these  five  characteristics  of  the 
government    established    by    the    Constitution 


^. 


28         EXPERIMENTS  AND  ESSENTIALS 

was  a  distinct  advance  beyond  the  ancient 
attempts  at  popular  government,  and  the  elimi- 
nation of  any  one  of  them  would  be  a  retro- 
grade movement  and  a  reversion  to  a  former 
and  discarded  type  of  government.  In  each 
case  it  would  be  the  abandonment  of  a  distinct- 
ive feature  of  government  which  has  succeed- 
ed, in  order  to  go  back  and  try  again  the 
methods  of  government  which  have  failed. 
Of  course  we  ought  not  to  take  such  a  back- 
ward step  except  under  the  pressure  of  inev- 
itable necessity. 

The  first  two  of  the  characteristics  which  I 
have  enumerated,  those  which  embrace  the  con- 
ception of  representative  government  and  the 
conception  of  individual  liberty,  were  the  pro- 
ducts of  the  long  process  of  development  of 
freedom  in  England  and  America.  They  were 
not  invented  by  the  makers  of  the  Constitu- 
tion. They  have  been  called  inventions  of  the 
Anglo-Saxon  race.  They  are  the  chief  con- 
tributions of  that  race  to  the  political  develop- 
ment of  civilization. 


EXPERIMENTS  29 

The  expedient  of  representation  first  found 
its  beginning  in  the  Saxon  witenagemot.  It 
was  lost  in  the  Norman  conquest.  It  was  re- 
stored step  by  step,  through  the  centuries  in 
which  parHament  established  its  power  as  an 
institution  through  the  granting  or  withhold- 
ing of  aids  and  taxes  for  the  king's  use.  It 
was  brought  to  America  by  the  English  colo- 
nists. It  was  the  practice  of  the  colonies  which 
formed  the  Federal  Union.  It  entered  into  the 
constitution  as  a  matter  of  course,  because  it 
was  the  method  by  which  modern  liberty  had 
been  steadily  growing  stronger  and  broader 
for  six  centuries  as  opposed  to  the  direct,  un- 
representative method  of  government  in  which 
the  Greek  and  Roman  and  Italian  republics  had 
failed.  This  representative  system  has  in  its 
turn  impressed  itself  upon  the  nations  which 
derived  their  political  ideas  from  Rome  and 
has  afforded  the  method  through  which  popu- 
lar libertv  has  been  winning  forward  in  its 
struggle  against  royal  and  aristocratic  ]iower 
and  privilege  the  world  over.     Bluntschli,  the 


30         EXPERIMENTS  AND  ESSENTIALS 

great  Heidelberg  publicist  of  the  last  century, 
says: 

"Representative  government  and  self- 
government  are  the  great  works  of  the 
English  and  American  peoples.  The  Eng- 
lish have  produced  representative  mon- 
archy with  parliamentary  legislation  and 
parliamentary  government.  The  Ameri- 
cans have  produced  the  representative 
republic.  We  Europeans  upon  the 
Continent  recognize  in  our  turn  that  in 
representative  government  alone  lies  the 
hoped-for  union  between  civil  order  and 
popular  liberty." 

The  Initiative  and  Compulsory  Referendum 
are  attempts  to  cure  the  evils  which  have 
developed  in  our  practice  of  representative 
government  by  means  of  a  return  to  the  old, 
unsuccessful,  and  discarded  method  of  direct 
legislation  and  by  rehabilitating  one  of  the 
most  impracticable  of  Rousseau's  theories. 
Everv  candid  student  of  our  governmental  cif- 


EXPERIMENTS  31 

fairs  must  agree  that  the  evils  to  be  cured 
have  been  real  and  that  the  motive  which  has 
prompted  the  proposal  of  the  Initiative  and 
Referendum  is  conmiendable.  I  do  not  think 
that  these  expedients  will  prove  wise  or  suc- 
cessful ways  of  curing  these  evils  for  reasons 
which  I  will  presently  indicate;  but  it  is  not 
necessary  to  assume  that  their  trial  will  be  de- 
structive of  our  system  of  government.  They 
do  not  aim  to  destroy  representative  govern- 
ment, but  to  modify  and  control  it,  and  were 
it  not  that  the  effect  of  these  particular  meth- 
ods is  likely  to  go  beyond  the  intention  of 
their  advocates  they  would  not  interfere  ser- 
iously with  representative  government  except 
in  so  far  as  they  might  ultimately  prove  to  be 
successful  expedients.  If  they  did  not  work 
satisfactorily  they  would  be  abandoned,  leav- 
ing representative  government  still  in  full  force 
and  effectiveness. 

There  is  now  a  limited  use  of  the  Refer- 
endum upon  certain  comparatively  simple 
questions.     No  one  has  ever  successfully  con- 


32         EXPERIMENTS  AND  ESSENTIALS 

troverted  the  view  expressed  by  Burke  in  his 
letter  to  the  electors  of  Bristol,  that  his  con- 
stituents were  entitled  not  merely  to  his  vote 
but  to  his  judgment,  even  though  they  might 
not  agree  with  it.     But  there  are  some  ques- 
tions upon  which  the  determining  fact  must 
be  the  preference  of  the  people  of  the  country 
or  of  a  community ;  such  as  the  question  where 
a  capital  city  or  a  county  seat  shall  be  located ; 
the  question  whether  a  debt  shall  be  incurred 
that   will   be   a   lien   on   their   property    for  a 
specific  purpose ;  the  question  whether  the  sale 
of    intoxicating    liquors    shall    be    permitted. 
Upon  certain  great  simple  questions  which  are 
susceptible  of  a  yes  or  no  answer  it  is  appro- 
priate that  the  people  should  be  called  upon 
to  express  their  wish  by  a  vote  just  as  they 
express  their  choice  of  the  persons  who  shall 
exercise  the  powers  of  government  by  a  vote. 
This,  however,  is  very  different  from  under- 
taking to  have  the  ordinary  powers  of  legis- 
lation exercised  at  the  ballot  box. 

In  this  field  the  weakness,  both  of  the  Initia- 


EXPERIMENTS  33 

tive  and  of  the  Compulsory  Referendum,  is 
that  they  are  based  upon  a  radical  error  as  to 
what  constitutes  the  true  difficulty  of  wise 
legislation.  The  difficulty  is  not  to  determine 
what  ought  to  be  accomplished  but  to  deter- 
mine how  to  accomplish  it.  The  affairs  with 
which  statutes  have  to  deal  as  a  rule  involve 
the  working  of  a  great  number  and  variety  of 
motives  incident  to  human  nature,  and  the 
working  of  those  motives  depends  upon  com- 
plicated and  often  obscure  facts  of  production, 
trade,  social  life,  with  which  men  generally 
are  not  familiar  and  which  require  study  and 
investigation  to  understand.  Thrusting  a 
rigid  prohibition  or  command  into  the  oper- 
ation of  these  forces  is  apt  to  produce  quite 
unexpected  and  unintended  results.  Alore- 
over,  we  already  have  a  great  body  of  laws, 
both  statutory  and  customary,  and  a  great 
body  of  judicial  decisions  as  to  the  meaning 
and  effect  of  existing  laws.  The  result  of 
adding  a  new  law  to  this  existing  body  of  laws 
is   that   we   get,    not   the    simple   consequence 


34         EXPERIMENTS  AND  ESSENTIALS 

which  the  words,  taken  by  themselves,  would 
seem  to  require,  but  a  resultant  of  forces  from 
the  new  law  taken  in  connection  with  all  exist- 
ing laws.  A  very  large  part  of  the  litigation, 
injustice,  dissatisfaction,  and  contempt  for  law 
which  we  deplore,  results  from  ignorant  and 
inconsiderate  legislation  with  perfectly  good 
intentions.  The  only  safeguard  against  such 
evils  and  the  only  method  by  which  intelligent 
legislation  can  be  reached  is  the  method  of 
full  discussion,  comparison  of  views,  modifi- 
cation and  amendment  of  proposed  legislation 
in  the  light  of  discussion  and  the  contribution 
and  conflict  of  many  minds.  This  process  can 
be  had  only  through  the  procedure  of  repre- 
sentative legislative  bodies.  Representative 
government  is  something  more  than  a  device 
to  enable  the  people  to  have  their  say  when 
they  are  too  numerous  to  get  together  and  say 
it.  It  is  something  more  than  the  employment 
of  experts  in  legislation.  Through  legislative 
procedure  a  different  kind  of  treatment  for 
legislative  questions  is  secured  by  concentrzi- 


EXPERIMENTS  35 

tion  of  responsibility,  by  discussion,  and  by 
opportunity  to  meet  objection  with  amend- 
ment. For  this  reason  the  attempt  to  legislate 
by  calling  upon  the  people  by  popular  vote  to 
say  yes  or  no  to  complicated  statutes  must 
prove  unsatisfactory  and  on  the  whole  inju- 
rious. In  ordinary  cases  the  voters  will  not 
and  cannot  possibly  bring  to  the  consideration 
of  proposed  statutes  the  time,  attention,  and 
knowledge  required  to  determine  whether  such 
statutes  will  accomplish  what  they  are  intend- 
ed to  accomplish ;  and  the  vote  usually  will 
turn  upon  the  avowed  intention  of  such  pro- 
posals rather  than  upon  their  adequacy  to  give 
effect  to  the  intention. 

This  would  be  true  if  only  one  statute 
were  to  be  considered  at  one  election ;  but 
such  simplicity  is  not  practicable.  There 
always  will  be,  and  if  the  direct  system  is 
to  amount  to  anything  there  must  be,  many 
proposals  urged  upon  the  voters  at  each  oppor- 
tunity. 

The  measures  submitted  at  one  time  in  ,sonic 


36         EXPERIMENTS  AND  ESSENTIALS 

of  the  Western  States  now  fill  considerable 
volumes. 

With  each  proposal  the  voter's  task  becomes 
more  complicated  and  difficult. 

Yet  our  ballots  are  already  too  complicated. 
The  great  blanket  sheets  with  scores  of  officers 
and  hundreds  of  names  to  be  marked  are  quite 
beyond  the  intelligent  action  in  detail  of  nine 
men  out  of  ten. 

The  most  thoughtful  reformers  are  already 
urging  that  the  voter's  task  be  made  more 
simple  by  giving  him  fewer  things  to  consider 
and  act  upon  at  the  same  time. 

This  is  the  substance  of  what  is  called  the 
"Short  Ballot"  reform;  and  it  is  right,  for  the 
more  questions  divide  public  attention  the  fewer 
questions  the  voters  really  decide  for  them- 
selves on  their  own  judgment  and  the  greater 
the  power  of  the  professional  politician. 

There  is  moreover  a  serious  danger  to  be 
apprehended  from  the  attempt  at  legislation  by 
the  Initiative  and  Compulsory  Referendum, 
arising  from  its  probable  effect  on  the  char- 


EXPERIMENTS 


37 


acter  of  representative  bodies.  These  expedi- 
ents result  from  distrust  of  legislatures.  They 
are  based  on  the  assertion  that  the  people  are 
not  faithfully  represented  in  their  legislative 
bodies,  but  are  misrepresented.  The  same  dis- 
trust has  led  to  the  encumbering  of  modern 
state  constitutions  by  a  great  variety  of  minute 
limitations  upon  legislative  power.  A'lany  of 
these  constitutions,  instead  of  being  simple 
frameworks  of  government,  are  bulky  and  de- 
tailed statutes  legislating  upon  subjects  which 
the  people  are  unwilling  to  trust  tlie  legisla- 
ture to  deal  with.  So  between  the  new  consti- 
tutions, which  exclude  the  legislatures  from 
power,  and  the  Referendum,  by  which  the  peo- 
ple overrule  what  they  do,  and  the  Initiative, 
by  which  the  people  legislate  in  their  place,  the 
legislative  re^jresentatives  who  were  formerly 
honored,  are  hampered,  shorn  of  power,  re- 
lieved of  responsibility,  discredited,  and  treated 
as  unworthy  of  confidence.  The  unfortunate 
effect  of  such  treatment  upon  the  character  of 
legislatures  and  the  kind  of  men  who  will  be 


.•54H:J'^4 


38         EXPERIMENTS  AND  ESSENTIALS 

willing  to  serve  in  them  can  well  be  imagined. 
It  is  the  influence  of  such  treatment  that  threat- 
ens representative  institutions  in  our  country. 
Granting   that   there    have   been   evils   in   our 
legislative  system  which  ought  to  be  cured,  I 
cannot  think  that  this  is  the  right  way  to  cure 
them.     It  would  seem  that  the   true  way  is 
for  the  people  of  the  country  to  address  them- 
selves to  the  better  performance  of  their  own 
duty  in  selecting  their  legislative  representa- 
tives and  in  holding  those  representatives  to 
strict  responsibility  for  their  action.     The  sys- 
tem of  direct  nominations,  which  is  easy  of 
application  in  the  simple  proceeding  of  select- 
ing members  of  a  legislature,  and  the  Short 
Ballot  reform  aim  at  accomplishing  that  re- 
sult.    I  think  that  along  these  lines  the  true 
remedy  is  to  be  found.     No  system  of  self- 
government  will  continue  successful  unless  the 
voters  have  sufficient  public  spirit  to  perform 
their  own  duty  at  the  polls,  and  the  attempt  to 
reform  government  by  escaping  from  the  duty 
of  selecting  honest  and  capable  representatives, 


EXPERIMENTS  39 

under  the  idea  that  the  same  voters  who  fail 
to  perform  that  duty  will  faithfully  perform 
the  far  more  onerous  and  difficult  duty  of 
legislation,  seems  an  exhibition  of  weakness 
rather  than  of  progress. 


II 

ESSENTIALS 


II 

ESSENTIALS 

In  the  first  of  these  lectures  I  specified  cer- 
tain essential  characteristics  of  our  system  of 
government,  and  discussed  the  preservation  of 
the  first — its  representative  character.  The 
four  other  characteristics  specified  have  one 
feature  in  common.  They  all  aim  to  preserve 
rights  by  limiting  power. 

Of  these  the  most  fundamental  is  the  pres- 
ervation in  our  Constitution  of  the  Anglo- 
Saxon  idea  of  individual  liberty.  The 
republics  of  Greece  and  Rome  had  no' such  con- 
ception. All  political  ideas  necessarily  concern 
man  as  a  social  animal,  as  a  member  of  society 
— a  member  of  the  state.  The  ancient  repub- 
lics, however,  put  the  state  first  and  regarded 
the  individual  only  as  a  meml:)er  of  the  state. 
Tiiey  had  in  view  the  pu1)lic  rights  of  the  state 


44         EXPERIMENTS  AND  ESSENTIALS 

in  which  all  its  members  shared,  and  the  rights 
of  the  members  as  parts  of  the  whole,  but  they 
did  not  think  of  individuals  as  having  rights 
independent  of  the  state,  or  against  the  state. 
They  never  escaped  from  the  attitude  towards 
public  and  individual  civil  rights,  which  was 
dictated  by  the  original  and  ever-present  ne- 
cessity of  military  organization  and  defense. 
The  Anglo-Saxon  idea,  on  the  other  hand, 
looked  first  to  the  individual.  In  the  early 
days  of  English  history,  without  theorizing 
much  upon  the  subject,  the  Anglo-Saxons  be- 
gan to  work  out  their  political  institutions 
along  the  line  expressed  in  our  Declaration  of 
Independence,  that  the  individual  citizen  has 
certain  inalienable  rights — the  right  to  life,  to 
liberty,  to  the  pursuit  of  happiness,  and  that 
government  is  not  the  source  of  these  rights, 
but  is  the  instrument  for  the  preservation  and 
promotion  of  them.  So  when  a  century  and  a 
half  after  the  conquest  the  barons  of  England 
set  themselves  to  limit  the  power  of  the  Crown 
they  did  not  demand  a  grant  of  rights.     They 


ESSENTIALS  45 

asserted  the  rights  of  individual  freedom  and 
demanded  observance  of  them,  and  they  laid 
the  corner-stone  of  our  system  of  government 
in  this  solemn  pledge  of  the  Great  Charter : 

"No  freeman  shall  be  taken,  or  im- 
prisoned, or  be  disseized  of  his  free  hold, 
or  his  liberties,  or  his  free  customs,  or  be 
outlawed,  or  exiled,  or  otherwise  de- 
stroyed, but  by  the  lawful  judgment  of 
his  peers,  or  by  the  law  of  the  land." 

Again  and  again  in  the  repeated  confirmations 
of  the  Great  Charter,  in  the  Petition  of  Rights, 
in  the  Habeas  Corpus  Act,  in  the  Bill  of 
Rights,  in  the  Massachusetts  Body  of  Liber- 
ties, in  the  \^irginia  Bill  of  Rights,  and,  finally, 
in  the  immortal  Declaration  of  1776 — in  all 
the  great  utterances  of  striving  for  broader 
freedom  which  have  marked  the  development 
of  modern  liberty,  sounds  the  same  dominant 
note  of  insistence  upon  the  inalienable  right  of 
individual  manhood  under  ""overnment  Init  in- 


46         EXPERIMENTS   AND  ESSENTIALS 

dependent   of   government,    and,    if   need    be, 
against  government,   to  life  and  liberty. 

It  is  impossible  to  overestimate  the  impor- 
tance of  the  consequences  which  followed  from 
these  two  distinct  and  opposed  theories  of 
government.  The  one  gave  us  the  dominion, 
but  also  the  decline  and  fall  of,  Rome.  It 
followed  the  French  Declaration  of  the  Rights 
of  ]\Ian,  with  the  negation  of  those  rights  in 
the  oppression  of  the  Reign  of  Terror,  the 
despotism  of  Napoleon,  the  popular  submission 
to  the  second  empire  and  the  subservience  of 
the  individual  citizen  to  official  superiority 
which  still  prevails  so  widely  on  the  continent 
of  Europe.  The  tremendous  potency  of  the 
other  subdued  the  victorious  Normans  to  the 
conquered  Saxon's  conception  of  justice,  re- 
jected the  claims  of  divine  right  by  the  Stew- 
arts, established  capacity  for  self-government 
upon  the  independence  of  individual  character 
that  knows  no  superior  but  the  law,  and  sup- 
plied the  amazing  formative  power  which  has 
molded,  according  to  the  course  and  practice 


ESSENTIALS  47 

of  the  common  law,  the  thought  and  custom 
of  the  hundred  milHons  of  men  drawn  from 
all  lands  and  all  races  who  inhabit  this  conti- 
nent north  of  the  Rio  Grande. 

The  mere  declaration  of  a  principle,  how- 
ever, is  of  little  avail  unless  it  be  supported  by 
practical  and  specific  rules  of  conduct  through 
which  the  principle  shall  receive  effect.  So 
Magna  Charta  imposed  specific  limitations 
upon  ro}'al  authority  to  the  end  that  individual 
liberty  might  be  preserved,  and  so  to  the  same 
end  our  Declaration  of  Independence  was  fol- 
lowed by  those  great  rules  of  right  conduct 
which  we  call  the  limitations  of  the  constitu- 
tion. ]\ragna  Charta  imposed  its  limitations 
upon  the  kings  of  England  and  all  their  ofii- 
cers  and  agents.  Our  constitution  imposed  its 
limitations  upon  the  sovereign  people  and  all 
their  officers  and  agents,  excluding  all  the 
agencies  of  popular  government  from  author- 
ity to  do  the  particular  things  which  would 
destroy  or  impair  the  declared  inalienable 
right  of  the  individual, 


48         EXPERIMENTS  AND  ESSENTIALS 

Thus  the  constitution  provides :  No  law 
shall  be  made  by  Congress  prohibiting  the  free 
exercise  of  religion,  or  abridging  the  freedom 
of  speech  or  of  the  press.  The  right  of  the 
people  to  keep  and  bear  arms  shall  not  be  in- 
fringed. The  right  of  the  people  to  be  secure 
in  their  persons,  houses,  papers  and  effects, 
against  unreasonable  searches  and  seizures, 
shall  not  be  violated.  No  person  shall  be  sub- 
ject for  the  same  offense  to  be  twice  put  in 
jeopardy  of  life  or  limb;  nor  be  compelled,  in 
any  criminal  case,  to  be  a  witness  against  him- 
self;  nor  be  deprived  of  life,  liberty,  or  prop- 
erty without  due  process  of  law;  nor  shall 
private  property  be  taken  for  public  use  with- 
out just  compensation.  In  all  criminal  prose- 
cutions, the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury 
of  the  state  and  district  wherein  the  crime  shall 
have  been  committed;  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation,  to  be 
confronted  with  the  witnesses  against  him,  to 
have   compulsory   process    for   obtaining   wit- 


ESSENTIALS  49 

nesses  in  his  favor,  and  to  have  the  assistance 
of  counsel  for  his  defense.  Excessive  bail 
shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishment  in- 
flicted. The  privilege  of  the  writ  of  habeas 
corpus  shall  not  be  suspended,  except  in  case 
of  rebellion  or  invasion.  No  bill  of  attainder 
or  ex  post  facto  law  shall  be  passed.  And  by 
the  Fourteenth  Amendment,  no  state  shall  de- 
prive any  person  of  life,  liberty,  or  property, 
without  due  process  of  law;  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  pro- 
tection of  the  law. 

We  have  lived  so  long  under  the  protection 
of  these  rules  that  most  of  us  have  forgotten 
their  importance.  They  have  been  unques- 
tioned in  America  so  long  that  most  of  us  have 
forgotten  the  reasons  for  them.  But  if  we 
lose  them  we  shall  learn  the  reasons  by  hard 
experience.  And  we  are  in  some  danger  of 
losing  them,  not  all  at  once  but  gradually,  by 
indifference. 

As   Professor   Sohm   savs :     "The   greatest 


50         EXPERIMENTS  AND  ESSENTIALS 

and  most  far  reaching  revolutions  in  history 
are  not  consciously  observed  at  the  time  of 
their  occurrence." 

Every  one  of  these  provisions  has  a  history. 
Every  one  stops  a  way  through  which  the 
overwhelming  power  of  government  has  op- 
pressed the  weak  individual  citizen,  and  may 
do  so  again  if  the  way  be  opened.  Such  pro- 
visions as  these  are  not  mere  commands.  They 
withhold  power.  The  instant  any  officer,  of 
whatever  kind  or  grade,  transgresses  them  he 
ceases  to  act  as  an  officer.  The  power  of 
sovereignty  no  longer  supports  him.  The 
majesty  of  the  law  no  longer  gives  him  au- 
thority. The  shield  of  the  law  no  longer 
protects  him.  He  becomes  a  trespasser,  a 
despoiler,  a  law  breaker,  and  all  the  machinery 
of  the  law  may  be  set  in  motion  for  his  re- 
straint or  punishment.  It  is  true  that  the 
people  who  have  made  these  rules  may  repeal 
them.  As  restraints  upon  the  people  them- 
selves they  are  but  self-denying  ordinances 
which  the  people  may  revoke,  but  the  supreme 


ESSENTIALS  51 

test  of  capacity  for  popular  self-government 
is  the  possession  of  that  power  of  self-restraint 
through  which  a  people  can  subject  its  own 
conduct  to  the  control  of  declared  principles  of 
action. 

These  rules  of  constitutional  limitation  dif- 
fer from  ordinary  statutes  in  this,  that  these 
rules  are  made  impersonally,  abstractly,  dis- 
passionately, impartially,  as  the  people's  ex- 
pression of  what  they  believe  to  be  right  and 
necessary  for  the  preservation  of  their  idea  of 
liberty  and  justice.  The  process  of  amend- 
ment is  so  guarded  by  the  constitution  itself  as 
to  require  the  lapse  of  time  and  opportunity 
for  deliberation  and  consideration  and  the 
passing  away  of  disturbing  influences  which 
may  be  caused  by  special  exigencies  or  excite- 
ments, before  any  change  can  be  made.  On  the 
contrary,  ordinary  acts  of  legislation  are  sub- 
ject to  the  considerations  of  expediency  for 
the  attainment  of  the  particular  objects  of  the 
moment,  to  selfish  interests,  momentary  im- 
pulses,   passions,    prejudices,    temptations.      If 


52         EXPERIMENTS  AND  ESSENTIALS 

there  be  no  general  rules  which  control  particu- 
lar action,  general  principles  are  obscured  or 
set  aside  by  the  desires  and  impulses  of  the 
occasion.  Our  knowledge  of  the  weakness  of 
human  nature  and  countless  illustrations  from 
the  history  of  legislation  in  our  own  country 
point  equally  to  the  conclusion  that  if  govern- 
mental authority  is  to  be  controlled  by  rules  of 
action,  it  cannot  be  relied  upon  to  impose  those 
rules  upon  itself  at  the  time  of  action,  but  must 
have  them  prescribed  beforehand. 

The  second  class  of  limitations  upon  official 
power  provided  in  our  constitution  prescribe 
and  maintain  the  distribution  of  power  to  the 
different  departments  of  government  and  the 
limitations  upon  the  officers  invested  with  au- 
thority in  each  department.  This  distribution 
follows  the  natural  and  logical  lines  of  the  dis- 
tinction between  the  different  kinds  of  power 
■ — legislative,  executive,  and  judicial.  But  the 
precise  allotment  of  power  and  lines  of  distinc- 
tion are  not  so  important  as  it  is  that  there 
shall  be  distribution,  and  that  each  officer  shall 


ESSENTIALS  53 

be  limited  in  accordance  with  that  distribution, 
for  without  such  Hmitations  there  can  be  no 
security  for  Hberty.  If,  whatever  great  officer 
of  state  happens  to  be  the  most  forceful,  skill- 
ful, and  ambitious,  is  permitted  to  overrun  and 
absorb  to  himself  the  powers  of  all  other  offi- 
cers and  to  control  their  action,  there  ensues 
that  concentration  of  power  which  destroys  the 
working  of  free  institutions,  enables  the  holder 
to  continue  himself  in  power,  and  leaves  no 
opportunity  to  the  people  for  a  change  except 
through  a  revolution.  Numerous  instances  of 
this  very  process  are  furnished  by  the  history 
of  some  of  the  Spanish- American  republics. 
It  is  of  little  consequence  that  the  officer  who 
usurps  the  power  of  others  may  design  only  to 
advance  the  public  interest  and  to  govern  well. 
The  system  which  permits  an  honest  and  well- 
meaning  man  to  do  this  will  afford  equal  op- 
portunity for  selfish  ambition  to  usurp  ])ower 
in  its  own  interest.  Unlimited  official  power 
concentrated  in  one  person  is  despotism,  and 
it  is  only  by  carefully  observed  and  jealously 


54 


EXPERIMENTS  AND  ESSENTIALS 


maintained  limitations  upon  the  power  of  every 
public  officer  that  the  workings  of  free  institu- 
tions can  be  continued. 

The  rigid  limitation  of  official  power  is  nec- 
essary not  only  to  prevent  the  deprivation  of 
substantial  rights  by  acts  of  oppression,  but  to 
maintain  that  equality  of  political  condition 
which  is  so  important  for  the  independence  of 
individual  character  among  the  people  of  the 
country.  When  an  officer  has  authority  over 
us  only  to  enforce  certain  specific  laws  at  par- 
ticular times  and  places,  and  has  no  authority 
regarding  anything  else,  we  pay  deference  to 
the  law  which  he  represents,  but  the  personal 
relation  is  one  of  equality.  Give  to  that  officer, 
however,  unlimited  power,  or  power  which 
we  do  not  know  to  be  limited,  and  the  relation 
at  once  becomes  that  of  an  inferior  to  a  supe- 
rior. The  inevitable  result  of  such  a  relation 
long-  continued  is  to  deprive  the  people  of  the 
country  of  the  individual  habit  of  independ- 
ence. This  may  be  observed  in  many  of  the 
countries  of  Continental  Europe,  where  offi- 


ESSENTIALS  55 

cial  persons  are  treated  with  the  kind  of  defer- 
ence, and  exercise  the  kind  of  authority,  which 
are  appropriate  only  to  the  relations  between 
superior  and  inferior. 

So  the  Massachusetts  Constitution  of  1780, 
after  limiting  the  powers  of  each  department 
to  its  own  field,  declares  that  this  is  done  "to 
the  end  it  may  be  a  government  of  laws  and 
not  of  men." 

The  third  class  of  limitations  I  have  men- 
tioned are  those  made  necessary  by  the  novel 
system  which  I  have  described  as  superimpos- 
ing upon  a  federation  of  state  governments,  a 
national  government  acting  directly  upon  the 
individual  citizens  of  the  states.  This  expedi- 
ent was  wholly  unknown  before  the  adoption 
of  our  constitution.  All  the  confederations 
which  had  been  attempted  before  that  time 
were  simply  leagues  of  states,  and  whatever 
central  authority  there  was  derived  its  author- 
ity from  and  had  its  relations  with  the  states 
as  separate  bodies  politic.  This  was  so  of  the 
old  confederation.     Each  citi/.en  owed  his  al- 


56         EXPERIMENTS  AND  ESSENTIALS 

leg'iance  to  his  own  state  and  each  state  had 
its  obhgations  to  the  confederation.  Under 
our  constitutional  system  in  every  part  of  the 
territory  of  every  state  there  are  two  sover- 
eigns, and  every  citizen  owes  allegiance  to 
both  sovereigns— to  his  state  and  to  his  na- 
tion. In  regard  to  some  matters,  which  may 
generally  be  described  as  local,  the  state  is  su- 
preme. In  regard  to  other  matters,  which  may 
generally  be  described  as  national,  the  nation 
is  supreme.  It  is  plain  that  to  maintain  the 
Ime  between  these  two  sovereignties  operating 
in  the  same  territory  and  upon  the  same  citi- 
zens is  a  matter  of  no  little  difficulty  and  deli- 
cacy. Nothing  has  involved  more  constant 
discussion  in  our  political  history  than  ques- 
tions of  conflict  between  these  two  powers, 
and  we  fought  the  great  Civil  War  to  deter- 
mine the  Cjuestion  whether  in  case  of  conflict 
the  allegiance  to  the  state  or  the  allegiance  to 
the  nation  was  of  superior  obligation.  We 
should  observe  that  the  Civil  War  arose  be- 
cause the  constitution  did  not  draw  a  clear  line 


ESSENTIALS 


57 


between  the  national  and  state  powers  regard- 
ing slavery.     It  is  of  very  great  importance 
that  both  of  these  authorities,  state  and  na- 
tional, shall  be  preserved  together  and  that  the 
limitations  which  keep  each  within  its  proper 
province  shall  be  maintained.     If  the  power  of 
the  states  were  to  override  the  power  of  the 
nation  we  should  ultimately  cease  to  have  a 
nation  and  become  only  a  body  of  really  sepa- 
rate, although  confederated,  state  sovereignties 
continually    forced   apart   by   diverse   interests     -    -  o 
and  ultimately  quarreling  with  each  other  and     '.    -' 
separating    altogether.      On    the    other    hand, 
if  the  power  of  the  nation  were  to  override 
that  of  the  states  and  usurp  their   functions    • 
we  should  have  this  vast  country,  with  its  great        "  ' 
population,    inhabiting    widely    separated    re- 
gions, differing  in  climate,  in  production,  in  in- 
dustrial and  social  interests  and  ideas,  governed 
in    all    its   local    affairs   by   one    all-powerful, —     ■->, 
central  government  at  Washington,   imposing^-V-     ? 
upon  the  home  life  and  behavior  of  each  com- 
munity  the   opinions   and    ideas   of   propriety 


.,^ 


58         EXPERIMENTS  AND  ESSENTIALS 

of  distant  majorities.     Not  only  would  this  be 
intolerable  and  alien  to  the  idea  of  free  self- 
government,  but  it  would  be  beyond  the  power 
of  a  central  government  to  do  directly.     De- 
centralization would  be  made  necessary  by  the 
mass  of  government  business  to  be  transacted, 
and  so  our  separate  localities  would  come  to 
be  governed  by  delegated  authority — by  pro- 
consuls authorized  from  Washington  to  exe- 
cute the  will  of  the  great  majority  of  the  whole 
people.    No  one  can  doubt  that  this  also  would 
lead  by  its  different  route  to  the  separation  of 
our  Union.     Preservation  of  our  dual  system 
of  government,  carefully  restrained  in  each  of 
its  parts  by  the  limitations  of  the  constitution, 
has  made  possible  our  growth  in  local  self- 
government  and  national  power  in  the  past, 
and,  so  far  as  we  can  see,  it  is  essential  to  the 
continuance  of  that  government  in  the  future. 
All  of  these  three  classes  of  constitutional 
limitations  are  therefore  necessary  to  the  per- 
petuity of  our  government.     I  do  not  wish  to 
be  understood  as  saying  that  every  single  limi- 


ESSENTIALS  59 

tation  is  essential.  There  are  some  limitations 
that  might  be  changed  and  something  different 
substituted.  But  the  system  of  limitation  must 
be  continued  if  our  governmental  system  is  to 
continue — if  we  are  not  to  lose  the  funda- 
mental principles  of  government  upon  which 
our  Union  is  maintained  and  upon  which  our 
race  has  won  the  liberty  secured  by  law  for 
which  it  has  stood  foremost  in  the  world. 

Lincoln  covered  this  subject  in  one  of  his 
comprehensive  statements  that  cannot  be 
quoted  too  often.  He  said  in  the  first 
inaugural : 

"A  majority  held  in  restraint  by  con- 
stitutional checks  and  limitations  and 
always  changing  easily  with  deliberate 
changes  of  popular  opinion  and  sentiment 
is  the  only  true  sovereign  of  a  free  peo- 
ple. Whoever  rejects  it  does  of  necessity 
fiy  to  anarchy  or  despotism." 

Rules  of  limitation,  however,  are  useless 
unless  they  are  enforced.     The  reason  for  re- 


6o  EXPERIMENTS  AND  ESSENTIALS 

straining  rules  arises  from  a  tendency  to  do 
the  things  prohibited.  Otherwise  no  rule 
would  be  needed.  Against  all  practical  rules 
of  limitation — all  rules  limiting  official  con- 
duct, there  is  a  constant  pressure  from  one 
side  or  the  other.  Honest  differences  of  opin- 
ion as  to  the  extent  of  power,  arising  from 
different  points  of  view  make  this  inevitable, 
to  say  nothing  of  those  weaknesses  and  faults 
of  human  nature  which  lead  men  to  press  the 
exercise  of  power  to  the  utmost  under  the  in- 
fluence of  ambition,  of  impatience  with  op- 
position to  their  designs,  of  selfish  interest  and 
the  arrogance  of  office.  No  mere  paper  rules 
will  restrain  these  powerful  and  common 
forces  of  human  nature. 

The  agency  by  which,  under  our  system  of 
government,  observance  of  constitutional  limi- 
tation is  enforced  is  the  judicial  power.  The 
constitution  provides  that  "This  constitution, 
and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  author- 


ESSENTIALS  6l 

ity  of  the  United  States,  shall  be  the  supreme 
law  of  the  land ;  and  the  judges  in  every  state 
shall  be  bound  thereby,  anything  in  the  consti- 
tution or  laws  of  any  state  to  the  contrary  not- 
withstanding." Under  this  provision  an  enact- 
ment by  Congress  not  made  in  pursuance  of  the 
constitution,  or  an  enactment  of  a  state  con- 
trary to  the  constitution,  is  not  a  law.  Such 
an  enactment  should  strictly  have  no  more 
legal  effect  than  the  resolution  of  any  private 
debating  society.  The  constitution  also  pro- 
vides that  the  judicial  power  of  the  United 
States  shall  extend  to  all  cases  in  law  and 
equity  arising  under  the  constitution  and  laws 
of  the  United  States.  Whenever,  therefore,  in 
a  case  before  a  Federal  court  rights  are  as- 
serted under  or  against  some  law  which  is 
claimed  to  violate  some  limitation  of  the  con- 
stitution, the  court  is  obliged  to  say  whether 
the  law  does  violate  the  constitution  or  not. 
because  if  it  does  not  violate  the  constitution 
the  court  must  give  effect  to  it  as  law,  while 
if  it  does  violate  the  constitution  it  is  no  law 


62         EXPERIMENTS  AND  ESSENTIALS 

at  all  and  the  court  is  not  at  liberty  to  give 
effect  to  it.  The  courts  do  not  render  decisions 
like  imperial  rescripts  declaring  laws  valid  or 
invalid.  They  merely  render  judgment  on  the 
rights  of  the  litigants  in  particular  cases,  and 
in  arriving  at  their  judgment  they  refuse  to 
give  effect  to  statutes  which  they  find  clearly 
not  to  be  made  in  pursuance  of  the  constitu- 
tion and  therefore  to  be  no  laws  at  all.  Their 
judgments  are  technically  binding  only  in  the 
particular  case  decided,  but  the  knowledge 
that  the  court  of  last  resort  has  reached  such 
a  conclusion  concerning  a  statute,  and  that  a 
similar  conclusion  would  undoubtedly  be 
reached  in  every  case  of  an  attempt  to  found 
rights  upon  the  same  statute,  leads  to  a  general 
acceptance  of  the  invalidity  of  the  statute. 

There  is  only  one  alternative  to  having  the 
courts  decide  upon  the  validity  of  legislative 
acts,  and  that  is  by  requiring  the  courts  to 
treat  the  opinion  of  the  legislature  upon  the 
validity  of  its  statutes,  evidenced  by  their  pas- 
sage,  as   conclusive.      But   the   effect   of   this 


ESSENTIALS  63 

would  be  that  the  legislature  would  not  be 
limited  at  all  except  by  its  own  will.  All 
the  provisions  designed  to  maintain  a  govern- 
ment carried  on  by  officers  of  limited  powers, 
all  the  distinctions  between  what  is  permitted 
to  the  national  government  and  what  is  per- 
mitted to  the  state  governments,  all  the  safe- 
guards of  the  life,  liberty  and  property  of  the 
citizen  against  arbitrary  power,  would  cease  to 
bind  Congress,  and  on  the  same  theory  they 
would  cease  also  to  bind  the  legislatures  of 
the  states.  Instead  of  the  constitution  being 
superior  to  the  laws  the  laws  would  be  superior 
to  the  constitution,  and  the  essential  principles 
of  our  government  would  disappear.  More 
than  one  hundred  years  ago,  Chief  Justice 
Marshall,  in  the  great  case  of  Marbury  vs. 
Madison,  set  forth  the  view  upon  which  our 
government  has  ever  since  proceeded.  He 
said: 

"The  powers  of  the  legislature  are  de- 
fined  and  limited;  and   that  those  limits 


64         EXPERIMENTS  AND  ESSENTIALS 

may   not  be  mistaken   or   forgotten,   the 
constitution  is  written.     To  what  purpose 
are  powers  limited,  and  to  what  purpose 
is  that  Hmit  committed  to  writing,  if  these 
hmits   may,    at   any   time,    be   passed   by 
those  intended  to  be  restrained  ?    The  dis- 
tinction between  a  government  with  hm- 
ited  and  unHmited  powers  is  aboHshed,  if 
those  Hmits  do  not  confine  the  persons  on 
whom  they  are  imposed,  and  if  acts  pro- 
hibited and  acts  ahowed  are  of  equal  obli- 
gation.    It  is  a  proposition  too  plain  to 
be  contested,  that  the  constitution  controls 
any  legislative  act  repugnant  to  it;  or  that 
the  legislature  may  alter  the  constitution 
by  an  ordinary  act. 

"Between  these  alternatives,  there  is  no 
middle  ground.  The  constitution  is  either 
a  superior,  paramount  law,  unchangeable 
by  ordinary  means,  or  it  is  on  a  level  with 
ordinary  legislative  acts,  and,  like  other 
acts,  is  alterable  when  the  legislature  shall 
please  to  alter  it.     If  the  former  part  of 


ESSENTIALS  65 

the  alternative  be  true,  then  a  legislative 
act,  contrary  to  the  constitution,  is  not 
law :  if  the  latter  part  be  true,  then  writ- 
ten constitutions  are  absurd  attempts,  on 
the  part  of  the  people,  to  limit  a  power, 
in  its  own  nature,  illimitable. 

"Certainly,  all  those  who  have  framed 
written  constitutions  contemplate  them  as 
forming  the  fundamental  and  paramount 
law  of  the  nation,  and  consequently,  the 
theory  of  every  such  government  must 
be,  that  an  act  of  the  legislature,  repug- 
nant to  the  constitution,  is  void.  This 
theory  is  essentially  attached  to  a  written 
constitution,  and  is,  consequently,  to  be 
considered  by  this  court  as  one  of  the  fun- 
damental principles  of  our  society." 

And  of  the  same  opinion  was  Montesquieu 
who  gave  the  high  authority  of  the  Esprit  dcs 
Lois  to  the  declaration  that 

"There   is  no  liberty   if  the  power  of 
judging  be  not  separate  from  the  legisla- 


66         EXPERIMENTS  AND  ESSENTIALS 

tive  and  executive  powers;  were  it  joined 
with  the  legislative  the  life  and  liberty 
of  the  subject  would  be  exposed  to  arbi- 
trary control." 

It  is  to  be  observed  that  the  wit  of  man  has 
not  yet  devised  any  better  way  of  reaching  a 
just  conclusion  as  to  whether  a  statute  does  or 
does  not  conflict  with  a  constitutional  limi- 
tation upon  legislative  power  than  the  sub- 
mission of  the  question  to  an  independent  and 
impartial  court.  The  courts  are  not  parties  to 
the  transactions  upon  which  they  pass.  They 
are  withdrawn  by  the  conditions  of  their  office 
from  participation  in  business  and  political 
affairs  out  of  which  litigations  arise.  Their 
action  is  free  from  the  chief  dangers  which 
threaten  the  undue  extension  of  power,  be- 
cause, as  Hamilton  points  out  in  The  Fed- 
eralist, they  are  the  weakest  branch  of 
government:  they  neither  hold  the  purse,  as 
does  the  legislature,  nor  the  sword,  as  does  the 
executive.     During  all  our  history  they  have 


ESSENTIALS  67 

commanded  and  deserved  the  respect  and  con- 
fidence of  the  people.  General  acceptance  of 
their  conclusions  has  been  the  chief  agency  in 
preventing  here  the  discord  and  strife  which 
afflict  so  many  lands,  and  in  preserving  peace 
and  order  and  respect  for  law. 

Indeed  in  the  effort  to  emasculate  represen- 
tative government  to  which  I  have  already  re- 
ferred, the  people  of  the  experimenting  states 
have  greatly  increased  their  reliance  upon  the 
courts.  Every  new  constitution  with  detailed 
orders  to  the  legislature  is  a  forcible  assertion 
that  the  people  will  not  trust  legislatures  to 
determine  the  extent  of  their  own  powers,  but 
will  trust  the  courts. 

Two  of  the  new  proposals  in  government, 
which  have  been  much  discussed,  directly  re- 
late to  this  system  of  constitutional  limitations 
made  effective  through  the  judgment  of  the 
courts.  One  is  the  proposal  for  the  Recall  of 
Judges,  and  the  other  for  the  Popular  Review 
of  Decisions,  sometimes  spoken  of  as  the 
Recall  of  Decisions, 


68         EXPERIMENTS  AND  ESSENTIALS 

Under  the  first  of  these  proposals,  if  a  speci- 
fied proportion  of  the  voters  are  dissatisfied 
with  a  judge's  decision  they  are  empowered  to 
require  that  at  the  next  election,  or  at  a  special 
election  called  for  that  purpose,  the  question 
shall  be  presented  to  the  electors  whether  the 
judge  shall  be  permitted  to  continue  in  office 
or  some  other  specified  person  shall  be  substi- 
tuted in  his  place.  This  ordeal  differs  radi- 
cally from  the  popular  judgment  which  a  judge 
is  called  upon  to  meet  at  the  end  of  his  term 
of  office,  however  short  that  may  be,  because 
when  his  term  has  expired  he  is  judged  upon 
his  general  course  of  conduct  while  he  has 
been  in  office  and  stands  or  falls  upon  that  as 
a  whole.  Under  the  Recall  a  judge  may  be 
brought  to  the  bar  of  public  judgment  imme- 
diately upon  the  rendering  of  a  particular  de- 
cision which  excites  public  interest  and  he 
will  be  subject  to  punishment  if  that  decision 
is  unpopular.  Judges  will  naturally  be  afraid 
to  render  unpopular  decisions.  They  will  hear 
and  decide  cases  with  a  stronger  incentive  to 


ESSENTIALS  69 

avoid  condemnation  themselves  than  to  do 
justice  to  the  Htigant  or  the  accused.  Instead 
of  independent  and  courageous  judges  we 
shall  have  timid  and  time-serving  judges. 
That  highest  duty  of  the  judicial  power  to 
extend  the  protection  of  the  law  to  the  weak, 
the  friendless,  the  unpopular,  will  in  a  great 
measure  fail.  Indirectly  the  effect  will  be  to 
prevent  the  enforcement  of  the  essential 
limitations  upon  official  power  because  the 
judges  will  be  afraid  to  declare  that  there  is 
a  violation  when  the  violation  is  to  accomplish 
some  popular  object. 

The  Recall  of  Decisions  aims  directly  at  the 
same  result.  Under  such  an  arrangement,  if 
the  courts  have  found  a  particular  law  to  be 
a  violation  of  one  of  the  fundamental  rules  of 
limitation  prescril^ed  in  the  constitution,  and 
tlic  public  feeling  of  the  time  is  in  favor  of 
disregarding  that  limitation  in  that  case,  an 
election  is  to  be  held,  and  if  the  people  in  the 
election  vote  that  the  law  shall  stand,  it  is  to 
stand,  although  it  be  a  violation  of  the  consti- 


yo         EXPERIMENTS  AND  ESSENTIALS 

tution;  that  is  to  say,  if  at  any  time  a  majority 
of  the  voters  of  a  state   (and  ultimately  the 
same  would  be  true  of  the  people  of  the  United 
States)   choose  not  to  be  bound  in  any  par- 
ticular case  by  the  rule  of  right  conduct  which 
they  have  established  for  themselves,  they  are 
not  to  be  bound.    This  is  sometimes  spoken  of 
as   a   Popular   Reversal   of   the   Decisions   of 
Courts.     That  I  take  to  be  an  incorrect  view. 
The  power  which  would  be  exercised  by  the 
people  under  such  an  arrangement  would  be, 
not  judicial,  but  legislative.    The  action  would 
not  be  a  decision  that  the  court  was  wrong  in 
finding  a  law  unconstitutional,  but  it  would  be 
making  a  law  valid  which  was  invalid  before 
because  unconstitutional.     In  such  an  election 
the  majority  of  the  voters  would  make  a  law 
where  no  law  had  existed  before;  and  they 
would  make  that  law  in  violation  of  the  rules 
of  conduct  by  which  the  people  themselves  had 
solemnly    declared   they   ought   to   be   bound. 
The  exercise  of  such  a  power,  if  it  is  to  exist, 
cannot  be  limited  to  the  particular  cases  which 


ESSENTIALS  71 

you  or  I  or  any  man  now  living  may  have  in 
mind.     It  must  be  general.     If  it  can  be  exer- 
cised at  all  it  can  and  will  be  exercised  by  the 
majority  whenever  they  wish  to  exercise  it. 
If  it  can  be  employed  to  make  a  Workmen's 
Compensation  Act  in  such  terms  as  to  violate 
the  constitution,  it  can  be  employed  to  prohibit 
the  worship  of  an  unpopular  religious  sect,  or 
to  take  away  the  property  of  an  unpopular  rich 
man    without    compensation,    or    to    prohibit 
freedom  of  speech  and  of  the  press  in  oppo- 
sition to  prevailing  opinion,  or  to  deprive  one 
accused  of  crime  of  a  fair  trial  when  he  has 
been  condemned  already  by   the   newspapers. 
In  every  case  the  question  whether  the  ma- 
jority shall  be  bound  by  those  general  princi- 
ples of  action  which  the  people  have  prescribed 
for  themselves  will  be  determined  in  that  case 
by  the  will  of  the  majority,  and  therefore  in 
no  case  will  the  majority  be  bound  except  by 
its  own  will  at  the  time. 

The  exercise  of  such  a  power  would  strike 
at  the  very  foundation  of  our  system  of  gov- 


72 


EXPERIMENTS  AND  ESSENTIALS 


ernment.  It  would  be  a  reversion  to  the  sys- 
tem of  the  ancient  repubhcs  where  the  state 
was  everything  and  the  individual  nothing  ex- 
cept as  a  part  of  the  state,  and  where  liberty 
perished.  It  would  be  a  repudiation  of  the 
fundamental  principle  of  Anglo-Saxon  liberty 
which  we  inherit  and  maintain,  for  it  is  the 
very  soul  of  our  political  institutions  that  they 
protect  the  individual  against  the  majority. 
"All  men,"  says  the  Declaration,  "are  endowed 
by  their  Creator  with  inalienable  rights.  Gov- 
ernments are  instituted  to  secure  these  rights." 
The  rights  are  not  derived  from  any  majority. 
They  are  not  disposable  by  any  majority. 
They  are  superior  to  all  majorities.  The  weak- 
est minority,  the  most  despised  sect,  exist  by 
their  own  right.  The  most  friendless  and 
lonely  human  being  on  American  soil  holds 
his  right  to  life  and  liberty  and  the  pursuit  of 
happiness,  and  all  that  goes  to  make  them  up. 
by  title  indefeasible  against  the  world,  and  it 
is  the  glory  of  American  self-government  that 
by  the  limitations  of  the  constitution  we  have 


ESSENTIALS 


7Z 


protected  that  right  against  even  ourselves. 
That  protection  cannot  be  continued  and 
that  right  cannot  be  maintained,  except  by 
jealously  preserving  at  all  times  and  under  all 
circumstances  the  rule  of  principle  which  is 
eternal  over  the  will  of  majorities  which  shift 
and  pass  away. 

Democratic  absolutism  is  just  as  repulsive, 
and  history  has  shown  it  to  be  just  as  fatal,  to 
the  rights  of  individual  manhood  as  is  mon- 
archical absolutism. 

But  it  is  not  necessary  to  violate  the  rules 
of  action  which  we  have  established  for  our- 
selves in  the  constitution  in  order  to  deal  by 
law  with  the  new  conditions  of  the  time,  for 
these  rules  of  action  are  themselves  subject  to 
popular  control.  If  the  rules  are  so  stated 
that  they  are  thought  to  prevent  the  doing  of 
something  which  is  not  contrary  to  the  prin- 
ciples of  liberty  but  demanded  by  them,  the 
true  remedy  is  to  be  found  in  reconsidering 
what  the  rules  ought  to  be  and,  if  need  be,  in 
restating   tliem   so   that   they   will   give  more 


74         EXPERIMENTS  AND  ESSENTIALS 

complete  effect  to  the  principles  they  are  de- 
signed to  enforce.  If,  as  I  believe,  there  ought 
to  be  in  my  own  state,  for  example,  a  Work- 
man's Compensation  Act  to  supersede  the 
present  unsatisfactory  system  of  accident  liti- 
gation, and  if  the  constitution  forbids  such  a 
laW' — which  I  very  much  doubt — the  true  rem- 
edy is  not  to  cast  to  the  winds  all  systematic 
self-restraint  and  to  inaugurate  a  new  system 
of  doing  whatever  we  please  whenever  we 
please,  unrestrained  by  declared  rules  of  con- 
duct ;  but  it  is  to  follow  the  orderly  and  ordi- 
nary method  of  amending  the  constitution  so 
that  the  rule  protecting  the  right  to  property 
shall  not  be  so  broadly  stated  as  to  prevent 
legislation  which  the  principle  underlying  the 
rule  demands. 

The  dift'erence  between  the  proposed  prac- 
tice of  overriding  the  constitution  by  a  vote 
and  amending  the  constitution  is  vital.  It  is 
the  difference  between  breaking  a  rule  and 
making  a  rule ;  between  acting  without  any 
rule  in  a  particular  case  and  determining  what 


ESSENTIALS  75 

ought  to  be  the  rule  of  action  applicable  to 
all  cases. 

Our  legislatures  frequently  try  to  evade 
constitutional  provisions,  and  doubtless  popu- 
lar majorities  seeking  specific  objects  would 
vote  the  same  way,  but  set  the  same  people  to 
consider  what  the  fundamental  law  ought  to 
be,  and  confront  them  with  the  question 
whether  they  will  abandon  in  general  the  prin- 
ciples and  the  practical  rules  of  conduct  accord- 
ing to  principles,  upon  which  our  government 
rests,  and  they  will  instantly  refuse.  While 
their  minds  are  consciously  and  avowedly  ad- 
dressed to  that  subject  they  will  stand  firm  for 
the  general  rules  that  will  protect  them  and 
their  children  against  oppression  and  usur- 
pation, and  they  will  change  those  rules  only  if 
need  be  to  make  them  enforce  more  perfectly 
the  principles  which  underlie  them. 

Communities,  like  individuals,  will  declare 
for  what  they  believe  to  be  just  and  right ;  but 
communities,  like  individuals,  can  be  led  away 
from  their  principles  step  by  step  under  the 


76         EXPERIMENTS  AND  ESSENTIALS 

temptations  of  specific  desires  and  supposed 
expediencies  until  the  principles  are  a  dead  let- 
ter and  allegiance  to  them  is  a  mere  sham. 

And  that  is  the  way  in  which  popular  gov- 
ernments lose  their  vitality  and  perish. 

The  Roman  consuls  derived  their  power 
from  the  people  and  were  responsible  to  the 
people ;  but  Rome  went  on  pretending  that  the 
emperors  and  their  servants  were  consuls  long 
after  the  Praetorians  were  the  only  source  of 
power  and  the  only  power  exercised  was  that 
of  irresponsible  despotism. 

A  number  of  countries  have  copied  our  con- 
stitution coupled  with  a  provision  that  the  con- 
stitutional guarantees  may  be  suspended  in 
case  of  necessity.  We  are  all  familiar  with  the 
result.  The  guarantees  of  liberty  and  justice 
and  order  have  been  forgotten :  the  govern- 
ment is  dictatorship  and  the  popular  will  is 
expressed  only  by  revolution. 

Nor,  so  far  as  our  national  system  is  con- 
cerned has  there  yet  appeared  any  reason  to 
suppose  that  suitable  laws  to  meet   the  new 


ESSENTIALS  'j'] 

conditions    cannot   be   enacted   without   either 
overriding  or  amending  the  constitution.     The 
liberty  of  contract  and  the   right  of  private 
property  which  are  protected  by  the  limitations 
of    the    constitution    are    held    subject    to    the 
police  power  of  government  to  pass  and  en- 
force  laws    for   the   protection   of   the   public 
health,  public  morals,  and  public  safety.     The 
scope  and  character  of  the  regulations  required 
to  accomplish  these  objects  vaiy  as  the  con- 
ditions of  life  in  the  country  vary.     Many  in- 
terferences with   contract   and  with   property 
wliich  would  have  been  unjustifiable  a  century 
ago   are   demanded   by   the   conditions   which 
exist  now  and  are  permissible  without  violat- 
ing any  constitutional  limitation.     What  will 
promote   these    objects    the    legislative    power 
decides  with  large  discretion,  and   the  courts 
have  no  authority  to  review  the  exercise  of 
that    discretion.      It    is    only    when    laws    are 
passed  under  color  of  the  police  power  and 
having  no  real  or  substantial  relation  to  the 
purposes    for    which    the    power    exists,    that 


78         EXPERIMENTS  AND  ESSENTIALS 

the  courts  can  refuse  to  give  them  effect. 
By  a  mnhitiide  of  judicial  decisions  in  re- 
cent years  our  courts  have  sustained  the  exer- 
cise of  this  vast  and  progressive  power  in 
dealing  with  the  new  conditions  of  life  under 
a  great  variety  of  circumstances.  The  prin- 
cipal difficulty  in  sustaining  the  exercise  of  the 
power  has  been  caused  ordinarily  by  the  fact 
that  carelessly  or  ignorantly  drawn  statutes 
either  have  failed  to  exhibit  the  true  relation 
between  the  regulation  proposed  and  the  ob- 
ject sought,  or  have  gone  farther  than  the 
attainment  of  the  legitimate  object  justified. 
A  very  good  illustration  of  this  is  to  be  found 
in  the  Federal  Employer's  Liability  Act  which 
was  carelessly  drawn  and  passed  by  Congress 
in  1906  and  was  declared  unconstitutional  by, 
the  Supreme  Courtj  but  which  was  carefully 
drawn  and  passed  by  Congress  in  1908  and 
was  declared  constitutional  by  the  same  court. 
Insistence  upon  hasty  and  violent  methods 
rather  than  orderly  and  deliberate  methods  is 
really   a   result   of   impatience   with  the   slow 


ESSENTIALS  79 

methods  of  true  progress  in  popular  govern- 
ment. We  should  probably  make  little  prog- 
ress were  there  not  in  every  generation  some 
■men  who,  realizing  evils,  are  eager  for  reform, 
impatient  of  delay,  indignant  at  opposition, 
and  intolerant  of  the  long,  slow  processes  by 
which  the  great  body  of  the  people  may 
consider  new  proposals  in  all  their  relations, 
weigh  their  advantages  and  disadvantages, 
discuss  their  merits,  and  become  educated 
either  to  their  acceptance  or  rejection.  Yet 
that  is  the  method  of  progress  in  which  no 
step,  once  taken,  needs  to  be  retraced;  and  it 
is  the  only  way  in  which  a  democracy  can 
avoid  destroying  its  institutions  by  the  impul- 
sive substitution  of  novel  and  attractive  but 
impracticable  expedients. 

The  wisest  of  all  the  fathers  of  the  Repub- 
lic has  spoken,  not  for  his  own  day  alone  but 
for  all  generations  to  come  after  him,  in  the 
solemn  admonitions  of  the  Farewell  Address. 
It  was  to  us  that  Washington  spoke  when  he 
said : 


8o         EXPERIMENTS  AND  ESSENTIALS 

"The  basis  of  our  political  systems  is 
the  right  of  the  people  to  make  and  to 
alter  their  constitutions  of  government; 
but  the  Constitution  which  at  any  time  ex- 
ists, till  changed  by  an  .explicit  and  au- 
thentic act  of  the  whole  people,  is  sacredly 
obligatory  upon  all.  *  *  *  Towards 
the  preservation  of  your  government,  and 
the  permanency  of  your  present  happy 
state,  it  is  requisite,  not  only  that  you 
steadily  discountenance  irregular  oppo- 
sitions to  its  acknowledged  authority,  but 
also  that  you  resist  with  care  the  spirit  of 
innovation  upon  its  principles,  -however 
specious  the  pretexts.  One  method  of 
assault  may  be  to  effect,  in  the  forms  of 
the  Constitution,  alterations  which  will 
impair  the  energy  of  the  system,  and  thus 
to  undermine  what  cannot  be  directly 
overthrown.  In  all  the  changes  to  which 
you  may  be  invited,  remember  that  time 
and  habit  are  at  least  as  necessary  to  fix 
the  true  character  of  governments  as  of 


ESSENTIALS  8l 

Other  human  institutions;  that  experience 
is  the  surest  standard  by  which  to  test  the 
real  tendency  of  the  existing  constitution 
of  a  country;  that  faciHty  in  changes, 
upon  the  credit  of  mere  hypothesis  and 
opinion,  exposes  to  perpetual  changes, 
from  the  endless  variety  of  hypothesis 
and  opinion." 

While,  in  the  nature  of  things,  each  gener- 
ation must  assume  the  task  of  adapting  the 
working  of  its  government  to  new  conditions 
of  life  as  they  arise,  it  would  be  the  folly  of 
ignorant  conceit  for  any  generation  to  assume 
that  it  can  lightly  and  easily  improve  upon  the 
work  of  the  founders  in  those  matters  which 
are,  by  their  nature,  of  universal  application 
to  the  permanent  relations  of  men  in  civil 
society. 

Religion,  the  philosophy  of  morals,  the 
teaching  of  history,  the  experience  of  every 
human  life,  point  to  the  same  conclusion — that 
in  the  practical  conduct  of  life  the  most  diffi- 


82         EXPERIMENTS  AND  ESSENTIALS 

cult  and  the  most  necessary  virtue  is  self- 
restraint.  It  is  the  first  lesson  of  childhood ; 
it  is  the  quality  for  which  great  monarchs  are 
most  highly  praised ;  the  man  who  has  it  not 
is  feared  and  shunned ;  it  is  needed  most  where 
power  is  greatest;  it  is  needed  more  by  men 
acting  in  a  mass  than  by  individuals,  because 
men  in  the  mass  are  more  irresponsible  and 
difficult  of  control  than  individuals.  The 
makers  of  our  constitution,  wise  and  earnest 
students  of  history  and  of  life,  discerned  the 
great  truth  that  self-restraint  is  the  supreme 
necessity  and  the  supreme  virtue  of  a  democ- 
racy. The  people  of  the  United  States  have 
exercised  that  virtue  by  the  establishment  of 
rules  of  right  action  in  what  we  call  the  limi- 
tations of  the  constitution,  and  until  this  day 
they  have  rigidly  observed  those  rules.  The 
general  judgment  of  students  of  government 
is  that  the  success  and  permanency  of  the 
American  system  of  government  are  due  to  the 
establishment  and  observance  of  such  general 
rules  of  conduct.    Let  us  change  and  adapt  our 


ESSENTIALS  83 

laws  as  the  shifting  conditions  of  the  times  re- 
quire, but  let  us  never  abandon  or  weaken  this 
fundamental  and  essential  characteristic  of  our 
ordered  liberty. 


UNIVERSITY  OF  CALIFORNIA  AT  LOS  ANGELES 

THE  UNIVERSITY  LIBRARY 

This  book  is  DUE  on  the  last  date  stamped  below 


f EB  1  s  1954 
Tj€T  2  7  1954 

NOV  18 1954 

JON  2  7  1958 

JUL2ll95ff 


tlAN  6     1i(^i 


7     1962 


iD.ML  FEB  20 


HITDLD-U 


1^1^, 


.0CT2^«72 


Form  Ii-9 
aom-1, '41(1122) 


amj 


Ai-lFL'-iuiiidi* 


im  ^himI^m'^^  regional  library  FACILITY 


